Pearce v. Emmi

MEGAN PEARCE, individually and as NEXT FRIEND of BABY B, her infant child, Plaintiff,v.MICHAEL EMMI, Defendant.

OPINION AND ORDER GRANTING IN PART AND DENYING IN
PART DEFENDANT AND NON-PARTY THE OAKLAND COUNTY SHERIFF'S
OFFICE'S MOTION FOR RECONSIDERATION/OBJECTION TO
MAGISTRATE'S OPINION AND ORDER (DOC. 41)

GEORGE
CARAM STEEH UNITED STATES DISTRICT JUDGE.

This
matter is presently before the Court on defendant Michael
Emmi and non-party Oakland County Sheriff's Office's
(OCSO) motion, (Doc. 41), for reconsideration/objection to
Magistrate Judge Majzoub's Opinion and Order, (Doc. 39),
dated February 9, 2017.

Pursuant
to E.D. Mich. LR 7.1(h)(2), motions for reconsideration are
typically decided without response briefs or oral argument.
Here, however, defendant Emmi and the OCSO's motion
raised four issues not previously presented to Magistrate
Judge Majzoub. The Court, therefore, ordered additional
briefing and held oral argument on March 28, 2017. For the
reasons stated below, defendant Emmi and the OCSO's
motion is GRANTED IN PART AND DENIED IN PART.

I.
Background

Plaintiff
Megan Pearce, individually and as next friend of Baby B, her
infant child, sued defendant Michael Emmi, asserting claims
under 42 U.S.C. § 1983, the Federal Wiretapping Act, and
provisions of Michigan state law. Plaintiff alleges that
defendant viewed her breastfeeding her infant in the nude on
two occasions in March 2016, by accessing a “Nest
Cam” application installed on the iPhone of Cody
Fuhrman, Plaintiff's fiancé, after Fuhrman's
phone was seized by the OCSO.

Nest
Cam is an electronic monitor that provides a live audio
visual stream. The monitor pairs with an application that
users download onto electronic devices like cellphones and
tablets. The monitor has a motion sensor and sends a
notification to the application installed on the user's
electronic device(s) when it detects motion in the room.
After receiving such a notification, the user may open the
application and observe the audio and video captured by the
monitor. The monitor has a small green light, which flashes
when the audio and visual live stream is monitored through
the Nest Cam application on an electronic device.

Plaintiff
downloaded the Nest Cam application on three devices - her
cellphone, her iPad tablet, and Fuhrman's cellphone.

On or
about March 2, 2016, Defendant Emmi led a search which
resulted in Fuhrman's arrest and the seizure of his cell
phone. The phone was purportedly logged into the Oakland
County Jail Computer Crime Lab that same day.

On or
about March 3, 2016, Plaintiff noticed the monitor's
green light flashing while she lay naked breastfeeding Baby
B. Plaintiff's iPad was turned off and her iPhone was not
monitoring the Nest Cam. Therefore, Plaintiff questioned
whether Fuhrman's iPhone - the only remaining device
paired with her Nest Cam monitor - was being used by a
stranger to watch her nurse Baby B. Plaintiff purportedly
used the “Find my iPhone” application to
determine that Fuhrman's iPhone was located at the
address where defendant Emmi resides.

Plaintiff
seeks to examine Fuhrman's iPhone to collect evidence
regarding her assertion that the iPhone was active at the
times that she and her infant were spied upon. Plaintiff
delivered a subpoena to the OCSO on July 15, 2016. The OCSO
objected, claiming that the iPhone was related to an ongoing
criminal investigation. Although Fuhrman is expected to plead
guilty to state narcotics offenses, the OCSO retains his
iPhone as evidence, claiming that Furhman may withdraw his
guilty plea within six months of his sentencing. Plaintiff
filed a Motion to Compel the OCSO to Comply with the Subpoena
to Produce Fuhrman's iPhone. (Doc. 15). The OCSO opposed
the motion, arguing that the examination would destroy the
chain of custody and adversely affect their ability to
prosecute Fuhrman. (Doc. 19 at PageID 154-55). The motion was
referred to Magistrate Judge Majzoub and determined without
oral argument pursuant to E.D. Mich. LR 7.2(f)(2).

Magistrate
Judge Majzoub granted plaintiff's Motion to Compel,
finding that the relevance of the information potentially
stored on the iPhone outweighed the risks identified in the
OCSO's response, and ordered that the iPhone be produced
by the OCSO for plaintiff's expert examination. (Doc. 39
at PageID 362). Additionally, “[t]o address the
OCSO's valid concerns” Magistrate Judge Majzoub
adopted a portion of the OCSO's alternative proposal,
ordering that “a representative of the OCSO be allowed
to attend, but not to obstruct or interfere with Mr. St.
Peter's examination.” (Doc. 39 at PageID
363).[1] An OCSO representative was ordered to
produce Fuhrman's phone for forensic examination by
plaintiff's expert, Mark St. Peter, at Computing Source,
29401 Stephenson Highway, Madison Heights, MI 48071, by close
of business on February 28, 2017. (Doc. 39 at PageID 362-63).
St. Peter was ordered to download a copy of the phone's
memory and provide it to the OCSO, at the OCSO's expense,
before performing his examination. (Id.).

Defendant
Emmi and the OCSO now request the Court to order (1) St.
Peter to view and note the open applications on Fuhrman's
iPhone prior to conducting the examination; (2) the OCSO to
remove the iPhone's SIM card prior to the forensic
examination; (3) that Emmi's computer forensic
examination expert may attend St. Peter's exam; and (4)
that the iPhone be returned to the OCSO immediately following
the examination.

II.
Analysis

Plaintiff
opposes defendant's request to permit his computer
forensic examination expert to attend St. Peter's exam.
(Doc. 44 at PageID 393). Plaintiff does not object to
defendant Emmi and the OCSO's three other requests, but
notes “that requiring Plaintiff's expert to turn
over information to the OCSO, which is still involved in a
criminal prosecution of Mr. Fuhrman, would allow the OCSO to
obtain information without a warrant and implicate Mr.
Fuhrman's Fourth amendment rights.” (Doc. 44 at
PageID 393).

The
Court, therefore, must determine who may attend St.
Peter's examination of Fuhrman's iPhone, and ...

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